Not-So-Free Speech: 5 Limits on 1st Amendment Rights

The First Amendment of the U.S. Constitution prohibits the government from "abridging the freedom of speech." But what does this freedom of speech encompass?

Unfortunately (or fortunately, depending on how you look at it), freedom of speech doesn't necessarily mean you can say whatever you want whenever you want to.

The First Amendment Is About Government Power

The issues of hate speech and First Amendment freedoms are often in the news. Recently, protests on college campuses and the differences in the First Amendment protection of the protesters at public versus private universities have drawn attention. Private universities have greater rights to prevent protests and limit First Amendment rights on their campuses. Public universities, on the other hand, are a part of a government-provided service. This puts them in a different category as far as their ability to limit free speech and free expression. This is because the First Amendment, like all of the Bill of Rights, is about limiting government power.

The same goes for social media. Despite how public they are, social media is owned by private companies. As such, they have the right to limit hate speech. This is why, for example, Neo-Nazis may be able to gather (peacefully) in a publicly-owned space and talk about horrible things, provided they obey all laws and do not try to incite violence. Social media companies, however, are free to remove any content deemed hate speech, including anything written by a Neo-Nazi promoting hateful views.

Here are five more examples of when you're right to free speech may be limited:

1. In a private home. The First Amendment prohibits the government from abridging the freedom of speech, but unless an individual is acting on behalf of the government or as a government agent, she is generally free to prohibit any kind of speech she wants in her own home, or any other private setting, as long as she does so without breaking another law, such as physically assaulting someone and causing bodily harm. A recent situation that occurred at a University of California-Berkeley law professor’s home is a good example of the limitations of free speech in a private home.
2. In a private workplace. If you work for a private employer, you generally have no right to free speech in the workplace and can be disciplined for what you say. However, your employer may run afoul of other laws, such as discrimination laws if you're fired for religious expression, or labor laws if you're fired for reporting labor violations or whistleblowing.
3. Defamation. Typically, defamation is not a criminal charge (although it once was, and several states still have laws against defamation). But just because the government isn't likely to prosecute you doesn't mean there won't be consequences. You may be sued for defamation, libel, or slander if you make false statements about someone to harm their reputation or business interests when you knew or should have known they were false (the standard is a little higher for "public figures," and requires actual malice). Even if you avoid criminal charges, it could still cost you a fair amount of money. The First Amendment won't protect you from a civil defamation claim.
4. School activities. Although students at public schools still have the right to First Amendment free speech, their rights may not be as extensive as the rights of adults. For example, in a 1988 Supreme Court case, the court ruled that students' free speech rights weren't violated when school administrators removed articles from a student newspaper that dealt with controversial topics. In a related issue of symbolic speech a 1969 U.S. Supreme Court case found that students wearing armbands to protest the Vietnam War was not protected speech because it disrupted the school environment, and the school district had the right to prevent the students from wearing them.
5. Obscene speech. The First Amendment does not protect speech or expression that is considered "obscene." This is why child pornography falls in the categories of unprotected speech and is illegal. However, the exact line between obscenity and free speech is often hard to determine and is based on community standards. For example, the filmmaker behind the controversial "2 Girls, 1 Cup" viral video was sentenced to four years in prison for making films that were considered obscene, despite his contention that they were "art" protected by the First Amendment. Another example is the Supreme Court case of Miller v. California which deals with sexually explicit materials.

If you believe your constitutional right to freedom of speech has been violated, an experienced constitutional law attorney can explain your legal options.

Related Resources:

• The Last Laugh: Comedian's Jokes Are Protected Speech (FindLaw's Legally Weird)
• Quran Burning: Protected Free Speech? (FindLaw's Law and Daily Life)

• First Amendment Limits: Fighting Words, Hostile Audiences, and True Threats (FindLaw’s US Constitution)
• Student Speech (FindLaw’s Learn About the Law)